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JOHN ROBERTS WAS RIGHT

John Roberts was right! The Chief Justice played the long game in 2012 (NFIB v. Sebelius) in rejecting a challenge to the constitutionality of the Affordable Care Act, and now he is looking good, his decision is starting to seem wise.

Among conservatives, conventional wisdom in 2012 was that Obamacare would be a catastrophe, that it would cause irreparable harm, and that it was the duty of our four-and-a-half “conservative” justices to invalidate the law before it was too late. The Chief, nominated in 2005 because perceived as the best available conservative-jurist, had been expected, as a member of the Court’s conservative bloc, to vote to sustain the first legal challenge to the constitutionality of the ACA to reach the high court. He was under enormous pressure to do so, but he shocked virtually everyone – including his conservative colleagues on the Court – by joining the progressive justices in voting to validate the ACA. Most conservatives, jurists or not, were appalled, and many, in hindsight, indicated they should have swapped John Roberts for a conservative counterpart to Justice Ginsburg – that is, a jurist more interested in partisan outcomes than in disinterested legal-analysis.

A few of us got shouted-down in the process of trying to make the point that the Roberts ruling was not progressive or leftist at all, that it was in fact a quintessential expression of conservatism. Our point was that the Chief had been loyal to one of the most fundamental principles of the Court’s mission: do not declare an Act of Congress unconstitutional unless there is no reasonable basis for salvaging it, for finding it constitutional. The foundation of that interpretive principle is the doctrine of separation-of-powers: federal laws are to be made only by Congress, not by the President or the courts.

The Chief’s fear, in the view of some of us, was that the NFIB case might eventually become as important, and as unsettling and divisive for the entire country, as Roe V. Wade, the notorious 1973 case in which the Supremes not only bought the constitutional argument that the Fourth Amendment confers a right of privacy, but construed a state-law prohibition of abortion as an infringement of that implied right. In our view, and possibly the Chief’s, abortion would have been a far-less controversial issue in 2012 had the Supreme Court decided in 1973 to leave abortion policy to the several states, because many states would have gone ahead and legalized abortion on their own initiative, while others would not – an outcome far less-provocative than having the courts take the matter out of the hands of the public. But because the ’73 Court elected to settle the matter on its own, we were left with a simmering controversy that seems to have intensified rather than abating.

It has been reported that the Chief was troubled by the 2012 case, and that he changed his mind at least once before determining that the individual “mandate” under the ACA (the requirement that everyone obtain healthcare insurance) would pass constitutional muster if its enforcement were treated as a “tax,” even though the Administration had consistently characterized it as a “penalty.” The Chief’s ultimate reasoning was that the penalizing of one’s going uninsured was the imposition of a tax, and Congress has the authority to impose taxes. Although that reasoning was not uniformly shared within the progressive bloc of the Court, the Chief’s vote did create a majority in favor of validating the ACA.

During the ensuing uproar, few conservatives took the trouble to consider the possibility that the Chief’s intent was to reinforce the constitutional separation of powers by finding a way to honor the will of Congress and keep the decision out of the hands of the courts. Moreover, few took the trouble to deduce that he was appalled by the prospect of rendering a controversial opinion that could have a serious impact upon the upcoming elections. Largely ignored was the possibility that the Chief did not want NFIB to become another Roe v. Wade, a lingering source of controversy and anger, and that he did not want the “conservative” bloc to be perceived as being as partisan (in favor of conservative positions) as Justice Ginsburg and her progressive colleagues were (in favor of progressive positions).

Most Republicans and conservatives have remained unaware of such considerations or unimpressed by them. For many, the Roberts ACA ruling wasted what might have been the only chance for the nation to avoid the single-payer system toward which the ACA was ineluctably headed. But a few inferred that the Chief might have reasoned that finding the ACA unconstitutional would not permanently stamp-out the push toward socialized medicine, that ironically it might assist the Left by mobilizing them for the 2016 elections, thereby helping to make single-payer healthcare permanent in this country, whereas a Republican victory in 2016 would at least give the Republicans a decent chance of legislatively unwinding ObamaCare before the damage had become irreversible.

The view here is that the Chief played the long game, and now it looks like he will win his bet. The Republicans did sweep in 2016 and are now poised to replace the ACA. After four years of President Trump, Roe v. Wade might still be the law of the land and the source of continuing anger and controversy, but ObamaCare might have been replaced by a healthcare program so popular that the original ACA would be nothing but an unpleasant memory. One way or the other, Chief Justice Roberts will have left us with a healthcare system (whether the original ACA or its replacement) that has been adopted by our Congress rather than one crammed-down upon us by our courts, and as a bonus our judicial system will have regained the respect of both the Left and the Right because of Roberts’s insistence upon a judiciary that decides cases on the merits rather than on the basis of the identities or beliefs of the parties. The power and reputation of the Supreme Court will have been not just upheld, but enhanced, and at that point the Chief would have earned a very private “I told you so” and a sigh of satisfaction.